SECCIÓN III. EL PRESIDENTE DEL CONSEJO DE ADMINISTRACIÓN
Artículo 88. Responsabilidad administrativa
judgment has been served on the plaintiff, the dismissal is no longer a matter of right and will require the filing of a motion to dismiss, not a mere notice of dismissal.
• The motion to dismiss will now be subject to the approval of the court which will decide on the motion upon such terms and conditions as are just (Sec. 2, Rule 17) unless otherwise specified in the order, the dismissal shall be without prejudice. . The dismissal under Sec. 2 is no longer a matter of right on the part of the plaintiff but a matter of discretion upon the court.
EFFECT OF DISMISSAL UPON EXISTING COUNTERCLAIM
If a counterclaim has already been pleaded by the defendant prior to the service upon him of the plaintiff’s motion to dismiss, and the court grants said motion to dismiss, the dismissal “shall be limited to the complaint”
The dismissal of the complaint does not carry with it the dismissal of the counterclaim, whether it is a compulsory or a permissive counterclaim because the rule makes no distinction. The defendant, if he so desires may prosecute his counterclaim either in a separate action or in the same action. Should he choose to have his counterclaim resolved in the same action, he must notify the court of his preference within fifteen (15) days from the notice of the plaintiff‘s motion to dismiss. Should he opt to prosecute his counterclaim in a separate action, the court should render the corresponding order granting and reserving his right to prosecute his claim in a separate complaint.
DISMISSAL DUE TO THE FAULT OF PLAINTIFF A complaint may be dismissed by the court motu proprio or upon a motion filed by the defendant. The dismissal is this case will be through reasons attributed to his fault.
Sec. 2, Rule 17 provides the following grounds for
dismissal:
a) Failure of the plaintiff, without justifiable reasons, to appear on the date on the date of the presentation of his evidence in chief;
b) Failure of the plaintiff to prosecute his action for an unreasonable length of time;
c) Failure of the plaintiff to comply with the Rules of Court;
d) Failure of the plaintiff to obey any order of the court;
e) Failure to appear at the trial; or f) Lack of jurisdiction.
The dismissal shall have the effect of an adjudication upon the merits and is thus with prejudice to the re-filing of the action, unless the court declares otherwise.
DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM OR THIRD-PARTY COMPLAINT
The rule on the dismissal of a complaint applies to the dismissal of any counterclaim, cross-claim, or third-party claim.
A voluntary dismissal by the claimant alone by notice pursuant to Sec. 1, Rule 17 shall be made before a responsive pleading or a motion for summary judgment is served or, if there is none, before the introduction of evidence at the trial or hearing (Sec. 4).
PRE-TRIAL (Rule18) CONCEPT OF PRE-TRIAL
Pre-trial is a mandatory conference and personal confrontation before the judge between the parties and their respective counsel.
It is conducted after the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial (within 5 days from
the last pleading has been filed).
NATURE AND PURPOSE
The conduct of a pre-trial is mandatory. Pre-trial is a procedural device intended to clarify and limit the basic issues between the parties. It thus paves the way for a less cluttered trial and resolution of the case. Its main objective is to simplify, abbreviate and expedite trial, or totally dispense with it.
It is a basic precept that the parties are bound to honor the stipulations made during the pre-trial.
The court shall consider the following maters in the pre- trial:
1) The possibility of an amicable settlement or a submission to alternative modes of dispute resolution;
2) Simplification of issues;
3) Necessity or desirability of amendments to the pleadings;
4) Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof;
5) Limitation of the number of witnesses;
6) Advisability of a preliminary reference of issues to a commissioner;
7) Propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist;
8) Advisability or necessity of suspending the proceedings; and
9) Other matters as may aid in the prompt disposition of the action (Sec. 2, Rule 18).
NOTICE OF PRE-TRIAL
The notice of pre-trial shall be served on the counsel of the party if the latter is represented by counsel. Otherwise, the notice shall be served on the party himself. The counsel is charged with the duty of notifying his client of the date, time and place of the pre-trial (Sec. 3,
Rule 18).
Notice of pre-trial is so important that it would be grave abuse of discretion for the court for example, to allow the plaintiff to present his evidence ex parte for failure of the defendant to appear before the pre-trial who did not receive through his counsel a notice of pre-trial.
In one case, the SC said that there is no legal basis for a court to consider a party notified of the pre-trial and to consider that there is no longer a need to send notice of pre-trial merely because it was his counsel who suggested the date of pre-trial.
If the plaintiff failed to move for pre-trial, the clerk of court shall do so.
APPEARANCE OF PARTIES; EFFECT OF FAILURE TO APPEAR
It shall be the duty of both the parties and their counsels to appear at the pre-trial (Sec. 4, Rule 18).
The failure of the plaintiff to appear shall be cause for the dismissal of the action. This dismissal shall be with prejudice except when the court orders otherwise (Sec. 5,
Rule 18). Since the dismissal of the action shall be with
prejudice, unless otherwise provided, the same shall have the effect of an adjudication on the merits thus, final. The remedy of the plaintiff is to appeal from the order of dismissal. An order dismissing an action with prejudice is appealable. Under the Rules, it is only when the order of dismissal is without prejudice, that appeal cannot be availed of (Sec. 1[h], Rule 41). Since appeal is available, certiorari is not the remedy because the application of a petition for certiorari under Rule 65 is conditioned upon the absence of appeal or any plain, speedy and adequate remedy (Sec. 1, Rule 65).
The failure of the defendant to appear shall be cause to allow the plaintiff to present his evidence ex parte and for the court to render judgment on the basis of the evidence presented by the plaintiff (Sec. 5, Rule 18). The order of the court allowing the plaintiff to present his evidence ex parte does not dispose of the case with finality. The order is therefore, merely interlocutory; hence, not appealable. Under Sec. 1(c) of Rule 41, no appeal may be taken from an interlocutory order. The defendant who feels aggrieved by the order may move for the reconsideration of the order and if the denial is tainted with grave abuse of discretion, he may file a petition for certiorari.
PRE-TRIAL BRIEF; EFFECT OF FAILURE TO FILE
The parties shall file with the court their respective pre- trial briefs which shall be received at least three (3) days before the date of the pre-trial. This pre-trial brief shall be served on the adverse party (Sec. 6, Rule 18).
The pre-trial brief shall contain the following matters: 1) A statement of their willingness to enter into an
amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof;
2) A summary of admitted facts and proposed stipulation of facts;
3) The issues to be tried or resolved;
4) The documents or exhibits to be presented, stating the purposes thereof;
5) A manifestation of their having availed of or their intention to avail of discovery procedures or referral to commissioners; and
6) The number and names of the witnesses, and the substance of their respective testimonies (Sec.6,
Rule 18).
F Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial.
a. If it is the plaintiff who fails to file a pre-trial brief, such failure shall be cause for dismissal of the action.
b. If it is the defendant who fails to do so, such failure shall be cause to allow the plaintiff to present his evidence ex parte.
F A pre-trial brief is not required in a criminal case. DISTINCTION BETWEEN PRE-TRIAL IN CIVIL
CASE AND PRE-TRIAL IN CRIMINAL CASE The pre-trial in a civil case is set when the plaintiff moves ex parte to set the case for pre-trial (Sec.1, Rule 18). The pre-trial in criminal case is ordered by the court and no motion to set the case for pre-trial is required from either the prosecution or the defense (Sec. 1, Rule 118).
The motion to set the case for pre-trial in a civil case is made after the last pleading has been served and. In a criminal case, the pre-trial is ordered by the court after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. The pre-trial in a civil case considers the possibility of an amicable settlement as an important objective. The pre- trial in a criminal case does not include the considering of the possibility of amicable settlement of criminal liability as one of its purposes.
In a civil case, the agreements and admissions made in the pre-trial are not required to be signed by the parties and their counsels. They are to be contained in the record of pre-trial and the pre-trial order (Sec. 7, Rule 18). In a criminal case, all agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel; otherwise, they cannot be used against the accuse (Sec. 2, Rule 118). The sanctions for non-appearance in a pre-trial are imposed upon the plaintiff or the defendant in a civil case. The sanctions in a criminal case are imposed upon the counsel for the accused or the prosecutor.
Mandatory Mandatory Presence of defendant and
counsel mandatory Accused need not be present, but his counsel must be present, otherwise he may be sanctioned Amicable settlement is
discussed
Amicable settlement is not discussed, unless the criminal case is covered by summary procedure Agreement included in pre- Agreements or admissions
trial order need not be in
writing must be written and signed by the accused and counsel to be admissible against him.
ALTERNATIVE DISPUTE RESOLUTION (ADR) 1) If the case has already filed a complaint with the
trial court without prior recourse to arbitration, the proper procedure to enable an arbitration panel to resolve the parties dispute pursuant to the contract is for the trial court to stay the proceedings. After the arbitration proceeding has already been pursued and completed, then the trial court may confirm the award made by the arbitration panel.
A party has several judicial remedies available at its disposal after the Arbitration Committee denied its Motion for Reconsideration:
1) It may petition the proper RTC to issue an order
vacating the award on the grounds provided for under Sec. 24 of the Arbitration Law;
2) File a petition for review under Rule 43 with the Court of Appeals on questions of fact, of law, or mixed questions of fact and law (Sec. 41, ADR); 3) File a petition for certiorari under Rule 65 on the
ground that the Arbitration Committee acted without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.
INTERVENTION (Rule 19)
Intervention is a legal proceeding by which a person who is not a party to the action is permitted by the court to become a party by intervening in a pending action after meeting the conditions and requirements set by the Rules. This third person who intervenes is one who is not originally impleaded in the action.
Intervention is merely a collateral or accessory or ancillary to the principal action ad not an independent proceeding. With the final dismissal of the original action, the complaint in intervention can no longer be acted upon.
REQUISITES FOR INTERVENTION
1) There must be a motion for intervention filed before rendition of judgment by the trial court. A motion is necessary because leave of court is required before a person may be allowed to intervene.
2) The movant must show in his motion that he has: a) A legal interest in the matter in litigation, the
success of either of the parties in the action, or against both parties;
b) That the movant is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof; and
c) That the intervention must not only unduly delay or prejudice the adjudication of the rights of the original parties and that the intervenor’s rights may not be fully protected in a separate proceeding.
d) The intervenor’s rights may not be fully protected in a separate proceeding.
TIME TO INTERVENE
The motion to intervene may be filed at any time before the rendition of judgment by the trial court (Sec. 2, Rule
18). Intervention after trial and decision can no longer be
permitted.
REMEDY FOR THE DENIAL OF MOTION TO INTERVENTION
1) The appellate court may exercise sound judicial discretion
2) An indispensable party can intervene even after the rendition of judgment
3) The remedy of the aggrieved party is appeal. Mandamus will not lie except in case of grave abuse of discretion and if there is no other plain, speedy and adequate remedy.
SUBPOENA (Rule 21) Court cannot issue subpoena absent any action
Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted under the laws
of the Philippines, or for taking of his deposition (Sec. 1,
Rule 21).
SUBPOENA DUCES TECUM - is a process directed to a person requiring him to bring with him at the hearing or trial of an action any books, documents, or other things under his control.
SUBPOENA AD TESTIFICANDUM – is a process directed to a person requiring him to attend and testify at the hearing or the trial of the action, or at any investigation conducted by the competent authority, or for the taking of his deposition.
SERVICE OF SUBPOENA
It shall be made in the same manner as personal or substituted service of summons.
1) The original shall be exhibited and a copy thereof delivered to the person on whom it is served. 2) Tendering to him the fees for one day‘s
attendance and the kilometrage allowed by the Rules, except that when a subpoena is issued by or on behalf of the Republic, or an officer or agency thereof, the tender need not be made. 3) The service must be made so as to allow the
witness a reasonable time for preparation and travel to the place of attendance.
4) If the subpoena is duces tecum, the reasonable cost of producing the books, documents or things demanded shall also be tendered.
Service of a subpoena shall be made by the sheriff, by his deputy, or by any other person specially authorized, who is not a party and is not less than eighteen (18) years of age (Sec. 6, Rule 21).
COMPELLING ATTENDANCE OF WITNESSES; CONTEMPT
In case of failure of a witness to attend, the court or judge issuing the subpoena, upon proof of the service thereof and of the failure of the witness, may issue a warrant to the sheriff of the province, or his deputy, to arrest the witness and bring him before the court or officer where his attendance is required, and the cost of such warrant and seizure of such witness shall be paid by the witness if the court issuing it shall determine that his failure to answer the subpoena was wilful and without just cause
(Sec. 8).
Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule (Sec. 9).
Exceptions:
a) Where the witness resides more than one hundred (100) kilometers from his residence to the place where he is to testify by the ordinary course of travel (Viatory Right), or
b) Where the permission of the court in which the detained prisoner’s case is pending was not obtained.
QUASHING OF SUBPOENA
The court may quash a subpoena duces tecum upon motion promptly made and, in any event, at or before the time specified therein:
a) if it is unreasonable and oppressive, or
b) the relevancy of the books, documents or things does not appear, or
c) if the person is whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof.
Subpoena ad testificandum may be quashed on the ground
that the witness is NOT BOUND THEREBY. In either case, the subpoena may be quashed on the ground that the witness fees and kilometrage (within 100 kilometrage
unless the witness maybe cited indirect contempt) allowed by
the Rules were not tendered when the subpoena was served.
MODES OF DISCOVERY (Rules 23 -28) F You can use this at any stage of the proceeding;
applicable also in special proceedings
F Written interrogatories to parties is used only for the purpose of calling the defendant to the witness stand
MODES OF DISCOVERY 1) Depositions pending action (Rule 23);
2) Depositions before action or pending appeal
(Rule 24);
3) Interrogatories to parties (Rule 25) 4) Admission by adverse party (Rule 26);
5) Production or inspection of documents and things (Rule 27); and
6) Physical and mental examination of persons
(Rule 28).
The importance of the rules of discovery is that they shorten the period of litigation and speed up adjudication. The evident purpose is to enable the parties, consistent with recognized principles, to obtain the fullest possible knowledge of the facts and issues before civil trials and thus prevent said trials from being carried on in the dark. The rules of discovery serve as (a) devices, along with the pre-trial hearing under Rule 18, to narrow and clarify the basis issues between the parties; and (b) devices for ascertaining the facts relative to those issues.
The basic purposes of the rules of discovery are:
a) To enable a party to obtain knowledge of material facts within the knowledge of the adverse party or of third parties through depositions;
b) To obtain knowledge of material facts or admissions from the adverse party through written interrogatories;
c) To obtain admissions from the adverse party regarding the genuineness of relevant documents or relevant matters of fact through requests for